Citation Nr: 0102728
Decision Date: 01/30/01 Archive Date: 02/02/01
DOCKET NO. 00-11 420 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Entitlement to an increased rating for migraine headaches,
currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Richard Giannecchini, Associate Counsel
INTRODUCTION
The veteran had active military service from June 1996 to
August 1996.
A perfected appeal to the Board of Veterans' Appeals (Board)
of a particular decision entered by a Department of Veterans
Affairs (VA) regional office (RO) consists of a Notice of
Disagreement (NOD) in writing received within one year of the
decision being appealed and, after a Statement of the Case
(SOC) has been furnished, a substantive appeal (VA Form 9)
received within 60 days of the issuance of the Statement of
the Case or within the remainder of the one-year period
following notification of the decision being appealed. The
present appeal arises from a March 2000 rating decision, in
which the RO denied the veteran's increased rating claim for
migraine headaches. The disorder has been rated as 30
percent disabling, effective from August 1996. The veteran
filed an NOD in April 2000, and the RO issued an SOC the same
month. The veteran filed a substantive appeal in May 2000.
The Board further notes that, in a Written Brief Presentation
dated in January 2001, the veteran's service representation
asked that the veteran be considered for a total disability
rating based upon individual unemployability (TDIU). While
that issue is not before us at this time, and is not
inextricably intertwined with the matter on appeal, it is
referred to the RO for development as is deemed warranted.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of the
veteran's appeal has been obtained by the RO.
2. Upon VA examination in February 2000, the veteran reported
that he suffered from migraine attacks two to three times
a week, and that during the attacks he might need to lie
down for two to three hours; he also reported that he had
had to call in sick to work five times in the past four
years due to his migraine headaches, and thus his
headaches sometimes interfered with his ability to work.
3. The veteran's migraine headaches do not exhibit very
frequent, completely prostrating and prolonged attacks,
productive of severe economic inadaptability.
CONCLUSION OF LAW
The schedular criteria for a rating greater than 30 percent
for migraine headaches have not been met. 38 U.S.C.A. §§
1155, 5107(b) (West 1991 & Supp. 2000); Pub. L. No. 106-475,
§ 4, 114 Stat. 2096, 2098-99 (2000) (to be codified as
amended at 38 U.S.C.A. § 5107(b)); 38 C.F.R. §§ 3.102, 4.1,
4.3, 4.7, 4.124a, Diagnostic Code 8100 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Basis
A review of the veteran's service medical records reflects
that he was given an entry level separation from the U.S. Air
Force, as a result of migraine headaches, shortly after
beginning basic training. In August 1996, the veteran filed
a claim seeking service connection for migraine headaches.
In May 1997, the veteran underwent a VA neurological
examination which resulted in a diagnosis of chronic headache
with syncopal episode. In a subsequent general medical
examination in July 1997, the veteran reported that he had
experienced his first headache in July 1996. He indicated
that the headache had been throbbing and moved around to
different areas of his head. He also indicated that during
his headache his eyes had started to blur and he experienced
double vision. In addition, he reported that his hands and
feet began to feel numb, and he eventually passed out. He
indicated that the numbness of the hands and the headaches
usually occurred every three to four weeks, and would last
for two weeks. He reported that sometimes he would suffer a
syncopal episode. He also reported that he was taking the
medication Wigraine to help combat his headaches. The
examiner's diagnosis was syncopal episodes, etiology unknown;
and chronic headaches.
In a September 1997 rating decision, the veteran was service
connected for migraine headaches and awarded a 30 percent
disability evaluation.
In February 2000, the veteran was medically examined for VA
purposes. He complained of recurrent migraine headaches with
dull/sharp feelings, as well as photophobia. The headaches
were reported to sometimes interfere with his job, and he
would need to take a nap two or three hours. In addition,
the veteran reported that his headaches had caused him to
call in sick five times during the past four years. He
indicated that, besides the severe headaches, he would suffer
nausea and a cooling sensation, as well as sweating of his
palms. Furthermore, the veteran reported that the migraines
occurred two to three times a week, and that high pitched
noises and stress precipitated the attacks. Upon clinical
evaluation, a neurological assessment was normal. The
examiner's diagnosis was chronic migraine headaches.
II. Analysis
The Board notes that VA has long recognized that the
Department has a duty to assist the veteran in developing
evidence pertinent to his claim. 38 U.S.C.A. § 5107 (West
1991); 38 C.F.R. § 3.103(a) (2000). This duty to assist
includes conducting a thorough and contemporaneous
examination of the veteran that takes into account the
records of prior medical treatment and prior examinations.
Precedential caselaw of the United States Court of Appeals
for Veterans Claims has confirmed this obligation over the
years. See Green v. Derwinski, 1 Vet.App. 121 (1991);
Lineberger v. Brown, 5 Vet.App. 367, 369 (1993); Waddell v.
Brown, 5 Vet. App. 454, 456 (1993); see also 38 C.F.R. §
3.326 (2000).
Very recent changes in law have amended the requirements as
to VA's development efforts in this, and other pending cases.
The United States Congress has recently passed, and the
President has signed into law, legislation which, in
pertinent part, modified and clarified VA's duty to assist a
claimant in evidentiary development. See the Veterans Claims
Assistance Act of 2000, Public Law No. 106-475, 114 Stat.
2096 (Nov. 9, 2000). In the present case, we find that the
RO's development action has generated sufficient evidence to
satisfy the Secretary's obligation.
Disability evaluations are determined by the application of a
schedule of ratings which is based upon average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Separate diagnostic codes identify the various disabilities.
Where there is a reasonable doubt as to the degree of
disability, such doubt shall be resolved in favor of the
claimant, and, where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. 38 C.F.R. §§ 3.102,
4.3, 4.7 (2000). Where entitlement to compensation has
already been established, and an increase in the disability
rating is at issue, the present level of disability is of
primary concern. See Francisco v. Brown, 7 Vet.App. 55, 58
(1994); 38 C.F.R. §§ 4.1, 4.2 (2000).
The RO has assigned a 30 percent evaluation for the veteran's
migraine headaches, in accordance with the criteria set forth
in the rating schedule. In doing so, specific consideration
was given to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100.
Under DC 8100, in rating migraine, very frequent and
completely prostrating and prolonged attacks productive of
severe economic inadaptability warrant assignment of a 50
percent evaluation. Where there are characteristic
prostrating attacks occurring on an average of once a month
over several months, a 30 percent evaluation is warranted.
38 C.F.R. § 4.124a, DC 8100.
Having reviewed the record, the Board finds that the evidence
does not support an increased rating for the veteran's
service-connected migraine headaches. In reaching this
conclusion, the Board notes that there are no medical reports
of record which document any treatment for the veteran's
migraine headaches. During his VA examination in February
2000, the veteran reported that he suffered migraine attacks
two to three times a week, and that during these attacks he
might need to lie down for two to three hours. Furthermore,
he reported that he had had to call in sick to work five
times in the previous four years due to his migraine
headaches, and that his headaches sometimes interfered with
his job.
As noted above, to warrant an increased rating to 50 percent,
the evidence of record must show not only the requisite
frequency and severity of the veteran's migraine headaches,
but that his headaches are productive of severe economic
inadaptability. In this instance, the Board finds that the
veteran has not demonstrated that his headaches are
productive of severe economic inadaptability. As noted
above, the veteran reported that he had lost only five days
of work in the past four years due to his service-connected
headaches, and that his headaches sometimes interfered with
his job. Thus, the Board concludes that the evidence of
record does not reflect that the veteran's service-connected
migraine headaches are productive of severe economic
inadaptability. Accordingly, a 50 percent disability rating
is not warranted. 38 C.F.R. § 4.124a, DC 8100 (2000).
In reaching this decision, we have considered the potential
application of the other various provisions of 38 C.F.R.
Parts 3 and 4, whether or not they were raised by the
veteran, as well as the entire history of the veteran's
condition, as required by Schafrath v. Derwinski, 1 Vet.App.
589, 592 (1991). Furthermore, the Board finds in this case
that the evidence does not present an unusual disability
picture so as to render impractical the application of the
regular schedular standards and warrant consideration for
referral for an extra-schedular evaluation under 38 C.F.R.
§ 3.321(b)(1) (such ratings may be authorized by the Under
Secretary for Benefits or the Director of the Compensation
and Pension Service). For example, there is no evidence, nor
has it been contended, that the veteran's service-connected
headaches have caused marked interference with employment or
necessitated frequent hospitalization. See Shipwash v.
Brown, 8 Vet.App. 218, 227 (1995), and Floyd v. Brown, 9
Vet.App. 94-96 (1996).
ORDER
An disability rating greater than 30 percent for migraine
headaches is denied.
ANDREW J. MULLEN
Member, Board of Veterans' Appeals